June 2023

Judgment of the Athens Court of First Instance on the Suspension of Enforcement Proceedings on behalf of Servicer for an amount of approximately EUR 2 million

Recently, the Athens Court of First Instance issued decision No. 3490/2023, which suspended the enforcement proceedings in favour of our client for an alleged claim of a loan receivables management company, amounting to approximately €2,000,000. In particular, it was held that it is not possible to carry out enforcement actions (including the forced seizure of real estate) until the decision on the opposition under Article 933 of the Civil Code, which the alleged debtor has filed against a check served after the issuance of a payment order. The judgment presumed that the payment order, on the basis of which the acceleration of the contested enforcement took place, would be annulled in the absence of written proof of the bank's claim from its trading books, as agreed in the contested loan agreement (in short, at the time of the issuance of the payment order, no documents were produced which constituted the bank's commercial books, electronically kept with uniform monitoring of debit entries and corresponding recording of the outstanding debt, but monthly information letters to the debtor which were simply stapled and 'dubbed' as commercial books with incomplete validation). The contested passage of the judgment reads verbatim as follows: 'The above documents, however, are not extracts from the bank's computerised commercial books, but information letters addressed to the debtor of the disputed loan. This is also apparent from the content of the above documents, which are in the nature of an information letter addressed expressly to the borrower and contain advertising messages for investment programmes. Moreover, the lawyer's assertion that the documents in question are copies of the original extracts extracted by printing from the mechanically kept commercial books of the defendant has no influence, since that assertion must be made by the bank's competent official, that certification is incomplete in the present case, since it appears only in the documents relating to the closure of the accounts and not in the balances and since no mention is made of the fact that the printouts in question were extracted from the bank's computerised books but, more generally, from the bank's computers. Given that the evidentiary agreement included in the loan agreement at issue refers specifically to extracts from the company's commercial books, whether computerised or simply kept, and the monthly accounts submitted do not constitute extracts extracted from commercial books, it is presumed in this case that the amount of the loan granted by the { ......} Order for Payment, the claim of the respondent is not evidenced by public or private documents and, therefore, does not legitimately give rise to the enforcement proceedings being expedited under the impugned cheque for payment dated 26-9-2022."

It is worth noting, further, that the judgment makes this judgment by accepting our client's claim that the payment order could be claimed to be defective and not covered by res judicata, despite the fact that it was served on the debtor more than twice (note: para. 633 of the CCC, a payment order that is served a second time and is not contested by an opposition acquires the force of res judicata if no opposition has been lodged within the time limit at the time of the first service). That is because, in the present case, the second service of the order took place at a time when the debtor's opposition (under Article 632 of the CCP), that is to say, his first opposition, was pending, with the result that no time-limit for lodging a second opposition was then triggered. That time-limit only started to run with the third service of the document, when, in the meantime, the first opposition had been discontinued by the termination of the proceedings, following the expiry of the statutory time-limit for its reinstatement as having been abandoned.